# State v. Mbacke > Court of Appeals of North Carolina · January 4, 2011 · 209 N.C. App. 35 URL: https://www.frixlaw.com/law-library/cases/9862900 ## Case - **Full name:** STATE OF NORTH CAROLINA v. OMAR SIDY MBACKE, Defendant - **Court:** Court of Appeals of North Carolina - **Decided:** January 4, 2011 - **Citations:** 209 N.C. App. 35; 703 S.E.2d 823; 2011 N.C. App. LEXIS 65 - **Precedential status:** Published - **Opinion:** Dissent by Stroud - **Judges:** McGee, Hunter, Stroud - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9862900 ## Opinion text STROUD, Judge, dissenting. *46 I respectfully dissent, as I believe that the majority opinion applies Arizona v. Gant, -— U.S. — , 173 L. Ed. 2d 485 (2009) incorrectly. The majority opinion’s view of the “reasonableness” of the officers’ belief that the vehicle may contain evidence of the offense of arrest is too narrow, and this application of Gant may seriously impair the ability of law enforcement officers to perform their job of responding to emergency calls and investigating potential crimes at these calls. The majority has accurately and fully set forth the facts of the case and the trial court’s findings and conclusions, so I will not reiterate them here except as necessary. The majority notes and rejects the State’s argument that when the officers searched defendant’s vehicle, “they had reason to believe they would find evidence in the vehicle supporting the charge for which they had arrested defendant!)]” The State argued that “had defendant contested the concealed weapon charge, [the State] could have been required to use evidence” such as other firearms, gun boxes, holsters, 'ammunition, spent shell casings or other indicia of ownership of the firearm to rebut claims by the defendant of good faith mistake, inadvertence, duress or that he was not aware he had placed the gun in the waist band of his trousers. Without knowing what claims defendant would eventually make, the officers were justified in searching for additional evidence establishing defendant’s] intent to carry a concealed handgun. The majority rejects the State’s reasoning, as well as that of the trial court, but I do not. Here, the trial court’s findings establish that defendant was arrested for carrying a concealed weapon and before the officers conducted a search of defendant’s vehicle incident to that arrest, defendant was handcuffed and secured in the back of a patrol vehicle. Therefore, as in Gant , defendant was not “within reaching distance of the passenger compartment at the time of the search.” See id. at-, 173 L. Ed. 2d at 501 . In contrast to Gant , defendant was not arrested for a traffic offense but for carrying a concealed weapon in violation of N.C. Gen. Stat. § 14-269 (al) (2007), which states that “[i]t shall be unlawful for any person willfully and intentionally to carry concealed about his person any pistol or gun . . . .” An essential element of this crime is the intent to carry the weapon concealed. See State v. Reams, 121 N.C. 556, 557 , 27 S.E. 1004, 1005 (1897) (“The offense of carrying a concealed weapon about one’s person and off his own premises consists in the guilty intent to carry it concealed . . . and the possession of the weapon raises the presumption of guilt, *47 which presumption may be rebutted by the defendant.”). If defendant at trial had argued that he lacked the intent to conceal the weapon found on his person because of a good faith mistake, duress, or inadvertence, the State would have been required to produce evidence to counter those claims. Evidence that would be helpful in establishing defendant’s intent that could have been discovered in defendant’s vehicle might include other concealed firearms in the vehicle or a concealed handgun holster, lock-box, or storage-case; pfficers could have also discovered other indicia of ownership or use of the firearm seized such as ammunition or spent shell casings. The majority rejects the “hypothetical evidence posited by the State, and set forth in the trial court’s findings of fact” as irrelevant to the crime of carrying a concealed weapon. However, I disagree, as the potential items of evidence listed were those identified in the uncontested findings of fact of the trial court, based upon the State’s evidence. In addition, the law supports the State’s argument that such evidence may be relevant to the charge of carrying a concealed weapon. I do not believe that this Court should substitute its judgment for that of the trial court as to this uncontested finding of fact. See State v. High, 183 N.C. App. 443, 447 , 645 S.E.2d 394, 396-97 (2007) (holding that the trial court’s uncontested findings of facts were binding on appeal). I also believe that we must consider reasonableness in the context of the situation to which the officers were responding. They were responding to a 911 call in which a citizen, Mr. Hall, reported that a man armed with a gun was in his driveway and that the same man had “shot up” his house the night before. When the first officer arrived about three minutes after the call, he found defendant exactly as Mr. Hall described in a car in the driveway. The officers were not responding to a call reporting that defendant, or anyone else, had a concealed weapon; they were first and foremost seeking to prevent anyone from being shot and to protect the public from a man with a gun. They had no way of knowing, upon responding to the call, exactly what they would find or how dangerous the situation would be. Fortunately, no shots were fired and no one was injured. However, the majority’s opinion requires the officers to make immediate and very fine legal distinctions about what evidence is or is not related to the exact offense for which they have arrested a defendant — even if they might have arrested him for other offenses as well. The officers’ actions in this situation were entirely reasonable. See Brinegar v. United States, 338 U.S. 160, 176 , 93 L. Ed. 1879 , 1891 *48 (1949) (“Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the. mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.”). I therefore agree with the trial court that it was “reasonable to believe the vehicle contained] evidence of the offense of arrest.” Gant, -U.S. at -, 173 L. Ed. 2d at 501 . Accordingly, I would hold that the trial court’s findings of fact support its conclusions of law, that the search of defendant’s vehicle following his arrest was lawful, and I would affirm the denial of defendant’s motion for appropriate relief. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9862900. Public record. Not legal advice.